Noise Case: NYC DEP v. Tao Restaurant

A noise violation was issued to our client, Tao Restaurant, for their air conditioning equipment. Alan Fierstein of Acoustilog testified that the test method used by the DEP inspector was insufficient to identify the source of noise in an area with multiple similar noise sources. He also testified that his own measurments had shown our client's equipment to be within code limits. The judge credited Mr. Fierstein's testimony and dismissed the violation.

DECISION

FURTHER FINDINGS OF FACT/ CONCLUSIONS OF LAW
NOV #000260520M A.C.24-227(A)

Petitioner appeared by S. McCoy and the issuing inspector M. Khokar appeard. Respondent appeared by Orie Shapiro Esq. Witnesses for respondent were Paul Goldstein, general manager of the restaurant and Alan Fierstein, President of Acoustilog, an acoustical consultant.

ALJ Potasznik:
"[I] find that due to the many variable sound devices in operation at the time of the inspection, one reading of the levels was not sufficient"

Inspector Khokar testified credibly that he went to the apartment of the complainant on 1/22/09 at 9:45 PM with inspector Owes. Inspector Owes went to the Respondent restaurant and asked the manager to turn off the exhaust fan. Inspector Khokar calibrated his dba reading device before he took his reading and took a reading of the ambient noise with the exhaust fan turned off and then took a reading with the fan turned on. The ambient dba was 47 dba and with the source was 52 dba.

Paul Goldstein the general manager of the restaurant testified credibly that he has worked at the Respondent restaurant for 9 years and there were no violations issued. The complainant is well known and Respondent has tried to address complainant’s concerns as they wish to be good neighbors.

He stated that since there are many buildings and many sources of noise i.e. hotels and beauty salons which have large A/C units and exhaust systems and are in close proximity to complainant’s apartment window that it was not Respondent’s equipment that was the cause of excessive noise.

He also testified that there have been subsequent inspections of the premises for noise complaints and no violations were issued. Mr. McCoy concurred with this statement that no further violations were issued.

Mr. Fierstein, an acoustical consultant employed by Respondent for many years visited the premises and was in the complainant’s apartment in both the day and at night. The complainant’s apartment is in a small residential building that is one or 2 floors higher than Respondent’s building but has a view of Respondent’s roof. See rough sketch made at the hearing and photos. [not shown here]

Respondent’s building has many sound-producing devices. There are at least ten additional devices which could have been sources of the noise and the A/C units from the hotel turn on and off from a thermostat. To determine the actual dba level of Respondent’s exhaust system, one would have to turn off the other devices and take at least 3 tests to be accurate since there are so many other sources which vary from minute to minute.

Mr. Fierstein set the levels of the exhaust system nine years ago for 45 dba and when the noise code changed in 2000 he adjusted the equipment to insure that it measured below 42 dbas. [sic]

Inspector Khokar believed that one time of having the system shut off was sufficient to measure the ambient levels. Mr. Fierstein stated that it was impossible to know the exact source of the noise with so many other devices. The inspector did not dispute that there were many other sources of ambient noise in the proximate area.

Based on the evidence presented, I find that Respondent established that due to many sound-producing devices in close proximity to Respondent and Complainant’s buildings it was difficult to assess the ambient noise levels without taking more than one reading due to the on-and-off nature of air conditioning compressors and other exhaust systems nearby.

I credit the testimony of Alan Fierstein that he tested Respondent’s device before and after the NoV was issued and it did not exceed the allowable dba levels. I also credit Inspector Khokar’s testimony but find that due to the many variable sound devices in operation at the time of the inspection, one reading of the levels was not sufficient to accurately measure the dbas [sic] of Respondent device.

Accordingly, I find that Respondent credibly rebutted the reliability of the one measurement taken of the ambient noise and find that Respondent presented credible evidence that the exhaust device operated below the allowed decibel levels. Accordingly, the violation is dismissed.